You can’t handle the truth!: Can my employer sue me for libel or defamation if I claim wrongful dismissal or discrimination?

Libel or defamation claims are at the top of some employees’ lists of fears when they consider taking action against their boss. As a general rule, an employer can’t sue you for libel or defamation just for suing them or filing a human rights complaint against them. After all, even if your lawsuit says terrible things about them, they get to defend themselves in court if they disagree. But what about employees who take their stories to the press?

An
Ontario judge recently dismissed a counterclaim of libel against Medha Joshi by
her former employer, Allstate Insurance. Allstate sued for libel after Joshi
filed a wrongful dismissal claim alleging that she was fired because she
refused to participate in her employer’s discriminatory “postal code” policy of not
providing insurance to Brampton residents, many of whom she identified as being
“visible minorities”.

Allstate took offence when Joshi gave a CBC interview about her employer’s allegedly discriminatory practices. Allstate claimed that their former employee’s statements to the press were libel because they made with malicious intent and were distinct from her claim of wrongful dismissal and therefore constitute libel.

This case
poses several questions, perhaps most importantly is what exactly are employees
and former employees allowed to discuss when it comes to their companies? When
does expressing one’s opinion on a company become libel or defamation? When can
a company sue for libel or defamation and, more importantly, when can they not?

What
is Libel or Defamation?

Libel is
published false statement that is likely
to injure the reputation of any person by exposing him to hatred, contempt or
ridicule, or that is designed to insult the person being written about. Defamation
is similar, but includes unpublished statements that harm some one’s
reputation. People sometimes use the word “slander”, too.

Often,
people defend against allegations of libel or defamation by showing that what
was said was truthful, even if it harmed someone. However, proving that you
were telling the truth can be a long and drawn out process. For employees like
Joshi, it might mean proving the allegations in your wrongful dismissal case. To
simplify issues and to avoid abuse, the government introduced legislation to let
courts throw out what they call a Strategic Lawsuit Against Public
Participation, or SLAPP (see below).

Other
defences against libel or defamation include absolute privilege, qualified
privilege, fair comment, responsible communication on a matter of public
interest, and communications made with the express or implied consent of a
person (Find the full definitions for each of these here and
consult a lawyer if you need advice). These defences cover things like the rule
that you can’t sue someone for what they write in a lawsuit against you, for
things said in confidential settlement negotiations, or journalists doing their
due diligence.

Anti-SLAPP
protections can save employees from costly libel or defamation suits when their
allegations engage the public interest

A SLAPP is
a lawsuit brought to discourage someone from engaging in “public
participation”. It is an intimidation tactic employed by those who wish to
suppress the rights of people who speak out against them. Since defending a lawsuit
is too expensive for many people, wealthy people, groups and corporations could
effectively use the court system (or just the threat of a lawsuit) to silence
critics.

Anti-SLAPP
legislation exists so that people will not be scared (or at least be less scared!)
to comment on certain matters of public interest out of fear of being sued. In
Ontario, this means that courts can quickly throw out cases that were clearly
intended to silence public participation without forcing employees or other
less-resourced parties to go through a length and expensive trial.

Anti-SLAPP legislation does NOT cover private interactions, only those
issues which concern a “public interest”. The need for critical discourse on topics of public interest is so strong that the
Judge in Joshi’s case found that even a “demonstrably false” statement can be
protected if it relates to a matter of
public interest, provided it wasn’t made maliciously. Because of this, Joshi’s intent
was an important part of the case: did she share the information because it was
actually of public interest or just to harm her former employer? The judge
agreed that her comments to the press were protected comments on an issue in
the public interest, not just an attack on Allstate’s reputation.

Joshi showed that discussing the alleged policy of an insurance company
to not provide insurance to Brampton customers whether because of the area (aka
a “postal code policy”), or because of the high amount of visible minorities in
the area would be a matter of public interest. Her former employer’s case
against her was dismissed.

Not every fired employee will have the same motivations as Joshi, or
have a story to share that the Court will agree addresses issues of the public
interest. Nevertheless, it’s an important reminder to corporations that
anti-SLAPP legislation will make it harder for them to intimidate former
employees away from telling their stories.

If you’re thinking about taking a story about your former employer to the press, consider getting legal advice first so you can weigh the risks.

DISCLAIMER: This blog is for educational and informational
purposes only and does not constitute legal advice. Results of cases described
on this website may not be typical and are not guaranteed. The accuracy of Moly
Law Blog posts is not guaranteed, and laws may change from time to time. If you
would like legal advice or have questions about your particular workplace
problems, please contact a lawyer.Click
Here to contact Hamilton labour, employment and human rights lawyers Sarah
Molyneaux or Roberto
Henriquez now. Contacting Molyneaux Law or using this
website does not create a lawyer-client relationship. Your use of this website
is entirely at your own risk.